Legal thoughts, since 2005.

You know, the person who's bought your products--thousands upon thousands of dollars worth-- religiously for nearly 20 years now based on Consumer Report's recommendations and my past favorable experiences with your products.

It's been a good relationship, but I'm afraid it has to come to an end in the very near future unless you do the right thing.

You see--here's the problem: my front loading 2 year old Kenmore washer (which we bought--even though it cost more than a top loading washer--because we wanted to do the right thing and conserve water) smells like a linebacker's sock after a long, highly contentious football game. In fact, it's not just my washer-it's the entire rear portion of my house and our supposedly "clean" clothes. It smells downright disgusting.

I have a special old towel set aside just for the washer and after every wash, I wipe down the washer, including the door gasket and the entire interior circumference of both sections that seal off the door. I leave the doors open when it's not in use (fortunately our kids are old enough to know not to climb into it). I regularly run the cleaning cycle which is supposed to fix the mildew problem for washers manufactured after 2008 (because those manufactured before 2008 are part of a class action for a defective product that the United States Supreme Court recently allowed to proceed). I even used those Fresh tablets. Nothing has made a difference and our washer--and now our house--smells disgusting.

I've called your 1-800 number and was told there's nothing that can be done because it's out of warranty. Given that this is clearly a defective product, that's simply ridiculous.

You should be ashamed of yourself, Sears (and all the other front loading washer manufacturers who have been sued in the pending class action). You designed a defective product. You know it's defective and as a result make current owners pay for new products and do all sorts of crazy, inconvenient things to try to prevent mildew/mold build up. You refuse to settle pending litigation. And even worse--you keep manufacturing the damn things!

Corporate greed at its worst. I'm appalled and disgusted--and frustrated. The smell is only going to get worse now that the humid summer is on its way.

So yes, it's true. Unless you do something to rectify this situation, our long relationship is going to have to come to a bitter end.

This week's Daily Record column is entitled "What can be done about lawyer depression." My past Daily Record articles can be accessed here.

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What can be done about lawyer depression

Being a lawyer in 2014 can be depressing. By now, we’re all familiar with the incredible reduction in the number of legal sector jobs since 2008, with 45,000 jobs lost by the time 2010 rolled around. And our profession has never quite recovered.

Even so, despite the plummeting number of legal jobs available, law schools from 2008 onward continued to accept new students in record numbers. Law schools only recently began to reduce those numbers starting just last year, when it was reported that law school enrollment for 2013 declined by 11 percent.

Unfortunately, the large numbers of student enrollments resulted in an influx of debt-saddled new law graduates into an unwelcoming job market. And those who were able to get jobs faced much lower starting salaries then expected. For example, as recently reported in the Boston Globe, assistant district attorneys in Massachusetts have starting salaries that are less than courthouse custodians’ starting salaries.

So these young lawyers — facing newfound stressors that prior generations did not — joined the ranks of a profession already known for its high depression and substance abuse rates. In fact, the legal profession ranks fourth for its high rate of suicides. According to age-adjusted information provided to CNN by the Centers for Disease Control and Prevention, the top five professions are: 1) Dentists, 2) Pharmacists, 3) Physicians, 4) Lawyers and 5) Engineers.

According to that same article, published on Jan. 20, lawyers are 3.6 times more likely to suffer from depression than the general population. Lawyers fare no better when it comes to chemical dependency. According to the Illinois Lawyer Assistance Program (online: www.illinoislap.org/alcohol-and-drug-abuse), the legal profession’s rate of chemical dependency is estimated to be at 20 percent, which is double the rate for nonlawyers.

There are many reasons suggested for these sobering statistics, but what you tend to hear most often from attorneys is that between the long work days, billable hours pressures, non-stop and unpredictable deadlines, and the antagonistic nature of the job, many are incredibly stressed out, unhappy, and overworked.

So what can lawyers do to improve their mental health and reduce the triggers that cause them to become depressed? Obviously, some of the stressors, such as unpredictable deadlines, can’t be removed from the practice of law, but there are other steps that can be taken to reduce stress. One of the best ways is to change the way that lawyers in your firm work.

For example, consider alternative billing arrangements instead of the billable hour. Look into value or flat fee billing. Focus on the work that needs to be completed rather than on the time spent doing the work.

Doing so will also reduce another stressor — the reliance on face time in the office as an indicator that lawyers are working hard. The unspoken emphasis on the importance of face time affects lawyers’ ability to maintain even a semblance of a normal life. The inflexibility imposed by face time requirements gives lawyers little if any control over their schedules and prevents them from spending quality time with their friends and families. And for lawyers who are parents, it’s often difficult to arrive home during hours when their children are actually awake.

So, by focusing on work product rather than face time and hours billed, lawyers will become more efficient and will have more control over their lives, thus greatly reducing their stress levels.

Finally, you can also take steps to reorganize and streamline a law office’s processes so that you and your employees can get more done in less time, both inside and outside of the office. Utilizing new technologies to automate law office redundancies and increase efficiency is key. By selectively choosing appropriate technology tools and software for your firm’s needs — such as cloud computing products that allow your employees to access firm files and work from any device with an Internet connection — you can increase flexibility and productivity and reduce stress.

The bottom line: our profession is in a crisis. 20th century law practice isn’t compatible with this century’s legal landscape. It’s time to revamp the way that we work and take advantage of 21st century tools before it’s too late. Refusing to adapt at the risk of losing another lawyer to suicide is simply unacceptable.

This week's Daily Record column is entitled "8 handy gadgets for the mobile lawyer office." My past Daily Record articles can be accessed here.

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8 handy gadgets for the mobile lawyer office

For the 21st century lawyer, mobility is key, since a mobile law practice makes it easier than ever for lawyers to practice law no matter where they happen to be. That’s why, according to the American Bar Association’s 2013 Legal Technology Survey, more lawyers are going mobile than ever before, with nearly 91 percent of lawyers surveyed reporting that they have used smartphones in their practices and 48 percent of lawyers surveyed reported using a tablet at work.

But in order to have a truly mobile law office, you need to have the right accessories. Otherwise, you’ll find yourself on the road trying to make do under less than ideal circumstances.

But never fear! What follows is a list of my favorite gadgets for the mobile lawyer.

First, there’s the the Aidata LHA-3 LAPstand Aluminum Portable Laptop Stand which retails for $38.99. I use this stand all the time. It raises my laptop up to a more ergonomic viewing level and is incredibly versatile, allowing you to set up shop no matter where you happen to be. Using it, you can view your laptop at multiple angles and it’s very lightweight at only 1.8 pounds.

Next, continue increasing the ergonomics of your mobile law office even more by dumping the clunky mouse. Instead, avoid wrist pain by switching to the Wacom Bamboo pen and tablet. It retails for only $49.99 and is well worth the money. This handy, pen-like tool can be used to navigate the Web with ease. It’s quite thin and light and takes up very little room in your laptop bag. And as an added bonus, it can be used to sign or annotate documents or create sketches, if you’re so inclined.

Next up, consider investing in a portable keyboard to go along with your ergonomic mobile office. I prefer Apple’s Wireless Keyboard ($69.99) because it’s full-sized, lightweight and very thin. It takes up very little space in your laptop bag and can be used with both your laptop and tablet.

Another stand to consider is the StabilePro iPad stand. Although pricey, ringing in at $107.99, this attractive stand raises your tablet to eye level and, when used with your portable keyboard, creates a functional work station. Another benefit, the stand rotates side to side and front and back, making it easier to view your tablet’s screen from any angle.

Avoid battery drain on the go and invest in Monster Outlets to Go. This compact tool makes it easy to keep your devices charged while on the road. It includes both electrical outlets and a USB port and costs only $19.95.

Another option is to use an iPhone case with a built-in battery pack. The Mophie Space Pack iPhone 5/5S case with battery charger is a great choice since not only is it a battery charger, it also includes up to 16 GB of backup storage. It costs a hefty $149.95 but depending on your needs, may be well worth the price.

Next up, avoid the risk of a water-logged tablet and purchase a DryCase cover for your tablet. For $59.99, this flexible, clear tablet case will protect your tablet from water, whether you’re at the beach or hiking in the rain.

Finally, splurge and buy yourself the Pencil iPad stylus by FiftyThree. This stylus is incredibly sharp-looking and functional. And, it works just like a pencil. You write with the pencil tip and erase with the eraser end of the stylus. The graphite version costs $59.95 and the walnut version, which includes a magnetic strip to attach it to your tablet, costs $79.95.

So now that you have a few ideas about tools to enhance your mobile office, the next step is to add a few of them to your arsenal. Which ones will you buy?

This week's Daily Record column is entitled "ABA on lawyers mining social media for evidence" My past Daily Record articles can be accessed here.

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ABA on lawyers mining social media for evidence

Social media has been around for more than a decade now and its impact on our society is indisputable. But it’s only been in recent years that lawyers have begun to fully realize what a treasure trove of useful information can be obtained from social media throughout the litigation process.

Of course, mining social media for evidence has both drawbacks and benefits. Lawyers who seek to use social media evidence to obtain evidence for their cases must tread carefully and ensure that they fully comply with their ethical obligations when doing so.

Fortunately, there is a good amount of guidance available since a number of jurisdictions have addressed the ethics of mining social media for evidence. For the most part, the ethics boards have concluded that lawyers may not engage in deception when attempting to obtain information on social media, regardless of whether the party from whom information is sought is represented by counsel.

See, for example: Oregon State bar Ethics Committee Op. 2013-189 (lawyer may access an unrepresented individual’s publicly available social media information but “friending” known represented party impermissible absent express permission from party’s counsel); New York State Bar Opinion No. 843 [9/10/10] (attorney or agent can look at a party’s protected profile as long as no deception was used to gain access to it); New York City Bar Association Formal Opinion 2010-2 (attorney or agent can ethically “friend” unrepresented party without disclosing true purpose, but even so it is better not to engage in “trickery” and instead be truthful or use formal discovery); Philadelphia Bar Association Opinion 2009-02 (attorney or agent cannot “friend” unrepresented party absent disclosure that it relates to pending lawsuit); San Diego County Bar Association Opinion 2011-2 (attorney or agent can never “friend” represented party even if the reason for doing so is disclosed); and New York County Lawyers Association Formal Opinion No. 743 (attorney or agent can monitor jurors’ use of social media, but only if there are no passive notifications of the monitoring. The attorney must tell court if s/he discovers improprieties and can’t use the discovery of improprieties to gain a tactical advantage).

The American Bar Association’s Standing Committee on Ethics and Responsibility weighed in just last month. In Opinion 466, the committee considered “whether a lawyer who represents a client in a matter that will be tried to a jury may review the jurors’ or potential jurors’ presence on the Internet leading up to and during trial, and, if so, what ethical obligations the lawyer might have regarding information discovered during the review.”

In reaching its decision, the committee wisely compared the online activity at issue to similar offline activity, noting that viewing a juror’s publicly available online information was akin to observing a juror from a car while driving by the juror’s home. In both cases, the attorney is viewing information readily seen by the public and thus doing so did not constitute improper communication in violation of Rule 3.5(b).

However, when it came to attempting to view juror information that was not publicly viewable, the committee reached a different conclusion, holding that “(r)equesting access to a private area … is communication within this framework” and thus impermissible.

Interestingly, in regard to notifications sent by social networks to their users about the identity of people viewing their social media profiles, the committee reached a conclusion that differed from opinions on this issue handed down by other jurisdictions: “The fact that a juror or a potential juror may become aware that the lawyer is reviewing his Internet presence when an ESM network setting notifies the juror of such review does not constitute a communication from the lawyer in violation of Rule 3.5(b).”

And, last but not least, the committee required that lawyers researching jurors on social media had an “affirmative duty to act … triggered only when the juror’s known conduct is criminal or fraudulent, including conduct that is criminally contemptuous of court instructions.”

All in all this was a well-thought out opinion. I’m not sure I agree that passive notifications of social media profile views should be permissible since I think they arguably have the potential to affect a juror’s perception of the parties.

That being said, I was recently discussing this issue with my colleague, Rochester attorney and fellow Daily Record columnist, Scott Malouf, and he suggested that if a judge were to inform jurors at the outset of the case that the attorneys may research and view the jurors’ social media profiles, that would alleviate the perceived risk. He raises a good point. In addition, that instruction could offer the added benefit of discouraging jurors from engaging in improper online behavior thus reducing the risk of mistrials. So perhaps judges should consider adding that line to the boilerplate jury instructions.

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